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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Thornton v Crown Prosecution Service [2010] EWHC 346 (Admin) (28 January 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/346.html Cite as: [2010] EWHC 346 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		28th January 2010

1. LORD JUSTICE AIKENS: This is an appeal by way of Case Stated from sentences imposed by District Judge Deborah Wright, a District Judge (Magistrates' Court) sitting in the Uxbridge Magistrates' Court on 22 July 2009, for offences committed by each of the appellants under Section 4 of the Public Order Act 1996 ("the POA"). I will refer to the district judge as DJ Wright. The case concerns, once again, the problems raised when magistrates give indications of possible sentence at a hearing when a pre-sentence report or something similar is ordered, and then the sentencing hearing itself is before a differently constituted court, which thinks that the indication given by the first court was unreasonably lenient.
2. The Facts. The appellants are James Adam Thornton and Carl Thompson. Mr Thornton was 20 at the relevant time and Mr Thompson was 19. The charge that each of the appellants faced is set out in paragraph two of the case stated. It is, "That on 23 May 2009, Belmont Road, Uxbridge, Middlesex, the defendants used towards another threatening, abusive or insulting words or behaviour with intent to cause that person to believe that immediate unlawful violence would be used against them by any person or to provoke the immediate use of unlawful violence by them whereby those persons were likely believe that such violence would be used, or it was likely that such violence would be provoked, contrary to Section 4(1) and (4) of the Public~Order~Act 1986."
3. DJ Wright sentenced Mr Thompson to 18 weeks custody, suspended for 18 months, and there were various conditions attached. Mr Thompson was sentenced to 12 weeks custody, suspended for 18 months, with similar community requirements attached. The difference in sentence reflected the different antecedent histories of the two defendants.
4. The facts of the case giving rise to these offences and the sentences are set out in the Case Stated and thus are based on the facts as opened to DJ Wright. On 23 May 2009 at approximately 24 minutes past midnight, a fight occurred outside the Ostler Public House in Uxbridge High Street in Middlesex. The incident had been recorded on CCTV. That showed all three of the defendants, because there was another defendant also before the Magistrates' Court, were part of a large group of about 10 to 15 men who assaulted the victim. DJ Wright was told at the hearing before her on 22 July 2009 that the CCTV camera operators focused on the incident at a point when several men could be seen punching each other. The victim could be seen to pull the hair of a woman with such force that she fell to the ground. One of the defendants, who is not an appellant, punched the victim in the face and he was joined by other young men, including the two appellants who assaulted the victim. The victim ended up on the ground whilst being assaulted by other men, and both the appellants were seen repeatedly kicking the victim in the upper part of his body, and repeatedly punching him whilst he was lying on the ground. DJ Wright was told at the hearing before her on 22 July 2009 that the victim was not willing to give a statement to the police.
5. Mr Thornton had previous convictions. They included an offence of conspiracy to rob, for which he had been sentenced to a term of four years in a Young Offender Institution. That sentence was passed on 26 January 2007. Mr Thornton was released on licence in September 2008. His sentence expiry date for that offence is 20 September 2010. Therefore the offence for which he was being sentenced was committed whilst he was on licence. Mr Thompson was of previous good character.
6. The Proceedings. The appellants came before a lay bench at Uxbridge Magistrates' Court 1 July 2009. The following facts are taken from an affidavit by Mr Shahnawaz Yaqub, who is a solicitor and who acted as the advocate of the appellants and the other defendant before the lay magistrates. He also acted for the appellant before DJ Wright. There is no dispute as to these facts. The charges were put in the normal way and the appellants pleaded guilty to the offence. The prosecution advocate informed the lay magistrates of the full facts of the case. Mr Yaqub mitigated on behalf of the appellants. There was in the course of this a reference to the guidelines for magistrates that have been published by the Sentencing Guidelines Council, in respect of section 4 POA offences, in particular that of threatening behaviour and fear or provocation of violence. A copy of that guideline is annexed to the Case Stated. We have also been provided today with a pull out card, which is a part of this guideline, which gives magistrates guidance on the sentence structure and also gives a list of aggravating and mitigating factors which are taken from the Sentencing Guidelines Council Guidelines on "Overarching Principles of Seriousness."
7. The legal adviser to the magistrates was present throughout the hearing. There was no objection to the way Mr Yaqub conducted the hearing on behalf of the appellants, or the substance of his mitigation. The legal adviser did not suggest either then or subsequently that Mr Yaqub was in any way misleading the court. I, for my part, am entirely satisfied that he did no such thing and that he did his job as advocate on behalf of his clients whilst maintaining his duty towards the court. It is also clear that in the course of this mitigation there was some considerable reference to the guidelines to which I have referred.
8. At some stage the magistrates apparently filled in a form which is appended to the Case Stated. We have asked counsel a little bit about the provenance of this form, but it remains slightly shrouded in obscurity. The form we have is headed, "Sentencing form, Magistrates' Court". There is no indication that this is a form that is used nationwide; nor on the other hand, does it appear that it is simply used in the particular district in which the Uxbridge Magistrates' Court find itself. The page we have is then headed, "A. pre-sentence assessment stage." That suggests that there are other parts to this form. However, we have not seen them. Under that heading, the first two subheadings are intended to be filled in with details of the defendant and the charge(s).
9. Section 4 is headed, "Sentencing starting point range" and has a range of ten boxes. The box marked "community medium" which is in the middle of that range has been ticked in the case of the form for each of the two appellants. The fifth section on the form is a large box divided into two, and the heading is "offence factors influencing assessment." One of the two boxes is marked "A: aggravating factors" and that had in it in manuscript the words, "kicking and punching" for Mr Thornton and "kicking and punching victim" in the case of Mr Thompson. The other box under that heading is marked "mitigating factors" and in relation to Mr Thornton there has been added in manuscript, "reacted to victim assaulting a female, impulsive" and in the case of Mr Thompson, the words in manuscript have been added, "impulsive reaction to victim assaulting a female."
10. Under that are a series of boxes with the heading "culpability" and there are boxes marked "intentional", "reckless", another marked "knew likely outcome", and the other "negligent"." The "intentional" box has been ticked in each case.
11. Under that is the heading "harm caused/risk." That has been filled in with "punches and kicks to victim" in the case of both Mr Thornton and Mr Thompson.
12. Under the next heading, "offender factors influencing assessment", in the case of Mr Thornton it has been filled in in manuscript with the words "previous offences" and in the case of Mr Thornton "no previous, and early guilty plea."
13. Item seven is headed "seriousness assessment". Again, there are ten boxes across the page. In both cases the box marked "con medium" has been ticked.
14. The next item, number eight, is "main and secondary purpose of sentence." There are a number of boxes and in each case the boxes "punishment" and "reduction/crime deterrence" have been ticked.
15. The next box, marked "community order requirements to be investigated", contains a sentence in brackets which follows that sentence which is itself in capitals. The sentence in brackets reads, "ensure that the defendant is warned that this does not guarantee a non-custodial sentence will be imposed." In each case, the box underneath that heading has been filled in with the words in manuscript "unpaid work". The last box is the time in which the report is required, and the 'standard' box has been ticked.
16. Neither the Case Stated nor the affidavit of Mr Yaqub says specifically whether that warning about no guarantee that a non-custodial sentence will be imposed was in fact given to the appellants from the bench on 1 July 2009. However, the second paragraph of Mr Yaqub's affidavit states, "The magistrates deliberated, considering the aggravating and mitigating factors, indicating that a medium community penalty would be a suitable disposal." In the letter of 30 July 2009 from Martin Murray, solicitor for the appellants, to the Clerk to the Uxbridge justices, it states that the magistrates, "Indicated this a medium community penalty was appropriate in the circumstances. They effectively ruled out custody." I am prepared to accept that this is precisely what happened.
17. The case came before DJ Wright in the afternoon of 22 July 2009. She had read the PSR for that case and others over the midday break. Paragraph 16 of the Case Stated says that after the district judge had read Mr Thornton's PSR, she thought there was sufficient in it to alert her that there may have been a problem with the indication given by the magistrates to Mr Thornton on 13 July. That was primarily because the offence had occurred when Mr Thornton was still on licence for the conspiracy to rob offence.
18. When the case was called on DJ Wright alerted Mr Yaqub to her concerns, and she referred him to two particular cases. These were Nicholas v Chester Magistrates' Court [2009], EWHC, 1405, and R ex parte Wright v the justices of the Barking Magistrates' Court, [2004], EWHC, 1407. DJ Wright then heard the prosecution open the facts and then, to quote paragraph 18 of the Case Stated, "I realised that the indication given by the magistrates was more problematic than I had first feared." She asked to see the CCTV, but the CD on to which it was supposed to have been copied was blank.
19. The Case Stated then refers to section 172 of the Powers of Criminal Courts (Sentencing) Act 2000, to which I will return later. It refers then to the Sentencing Guidelines Council guidance to Magistrates' Courts on section 4 POA offences, to which I shall also refer shortly.
20. I should next refer to paragraphs' 30 to 32 of the Case Stated, where the district judge recalls that she was told that the magistrates were fully aware of the full facts when the matter was adjourned on 1 July, and that she could confirm from the legal adviser's notes from that day that the matter had been opened on a full facts basis. (The legal adviser's manuscript notes, which are not particularly legible, are annexed as an Appendix to the Case Stated).
21. Paragraph 31 of the Case Stated then says, "However it is equally clear from the notes of the hearing on 1 July that the defence have made representations that the offence fell within the second bracket of examples, and sentencing ranges given by the SGC for section 4 Public Order Act 1986 offences and the advocate said that the appropriate sentence was a community order. There is no suggestion from the notes that the magistrates' attention was drawn to the guidelines themselves, or to the fact that this representation was misleading, in my view, in two respects."
22. At paragraph 32 of the Case Stated it says, "The second band of cases (in the Guideline) refers to 'fear or threat of immediate level, unlawful violence, such an as punch.' The violence in this case went far beyond that. Even at the second ground level, the sentencing range is a low level community order to 12 week custody." Paragraph 33 states, "the defence have in their request from me to state a case, referred to a number of cases none of which was cited by the advocate during the hearing which took place two and a half to three hours after I warned Mr Thornton's representatives that there may be an issue with regards to the indication given."
23. As I have already indicated, I am satisfied that there was no misrepresentation on the part of Mr Yaqub in presenting the case on behalf of his clients on 1 July 2009. Furthermore, I am satisfied on the material before me that there was open reference to the Guidelines in respect of this offence in the course of that hearing.
24. The legal adviser's note of that hearing before DJ Wright has, in the words of paragraph 41 of the Case Stated, "Gone astray." That paragraph sets out the note of the probation officer who was present at the time, and that note indicates that DJ Wright said at the time:

"Unfortunately the legal adviser's note of the hearing on 22nd July has gone astray, but I am assisted by a note taken by the probation officer in court where it is recorded that I said the following, 'there were significant aggravating features to this offence. I am not bound by the indication given by the previous bench as that indication was obviously not in accordance with sentencing guidelines. You may argue legitimate expectation for a community sentence but that indication should never have been given. This offence is so far over the custodial threshold. It was a horrendous incident. The victim may have behaved badly, buy your response was wholesale group violence."

25. The Questions for the Court Paragraph 43 of the Case Stated sets out three questions for the court's consideration. These are:

"Questions for the High Court.

1. Where an indication given to a defendant about the level at which s/he is to be sentenced is (a) inconsistent with the Sentencing Guidelines Council guidelines and (b) no reason has been given for departing from the guidelines can the defendant be said to have a legitimate expectation?

2. Can an indication which creates such an expectation override the statutory duty set out in section 172 of the Criminal Justice Act 2003 to have regard to the relevant guidelines?

3. did the District Judge err in law diverging from the sentencing indication given by the magistrates?"

26. The Law Section 172 of the Criminal Justice Act 2003 provides:

"172 Duty of court to have regard to sentencing guidelines (1) Every court must—

(a) in sentencing an offender, have regard to any guidelines which are relevant to the offender's case, and.

(b) in exercising any other function relating to the sentencing of offenders, have regard to any guidelines which are relevant to the exercise of the function.

(2) In subsection (1) "guidelines" means sentencing guidelines issued by the Council under section 170(9) as definitive guidelines, as revised by subsequent guidelines so issued."

27. Section 174(2)(a) provides:

"(a) where guidelines indicate that a sentence of a particular kind, or within a particular range, would normally be appropriate for the offence and the sentence is of a different kind, or is outside that range, state the court's reasons for deciding on a sentence of a different kind or outside that range."

28. Section 172(1)(a) plainly refers to the actual process of sentencing the defendant itself. Section 172(1)(b) applies, in my view, to the exercise that magistrates engage in when they give an indication or say they are considering a possible sentence or range to a defendant when ordering a PSR or other report. (It may apply to other circumstances as well). That paragraph requires therefore that the magistrates should have regard to guidelines issued by the Sentencing Guidelines Council as definitive guidelines under section 179 of the 2000 Act. Section 174(2)(a) applies, by its terms, only to the sentence itself. It does not, in my view, apply to the question of any other function being exercised, as referred to in the 172(1)(b).
29. In R v Nottingham Magistrates' Court ex parte Paul Davidson 1999, EWHC, Admin 426 [2001] Criminal Appeal Reports(S) 167 to 169, the Divisional Court had to consider whether to quash an order of the stipendiary magistrate committing a defendant to the Crown court for sentence. The argument of the advocate was that he received an indication from a lay bench that the defendant would be sentenced in the Magistrates' Court. Therefore it was said that when the stipendiary magistrate ordered the committal for the Crown Court for sentence, that was inconsistent with the expectation legitimately created in the mind of the defendant that he would be sentenced in the Magistrates' Court.
30. At paragraph 3 of the judgment of Lord Bingham CJ, who sat with Ognall J, the Lord Chief Justice set out the following principle:

"If the court at a preliminary stage of the sentencing process gives to a defendant any indication as to the sentence which will or will not be thereafter passed upon him in terms sufficiently unqualified to found a legitimate expectation in the mind of the defendant that any court which later passes sentence upon him will act in accordance with the indication given, and if on a later occasion a court without reason which justifies departure from the early indication, and whether or not it was aware of that indication, passes a sentence inconsistently and more severe than the sentence indicated, the court will ordinarily feel obliged, however reluctantly, to adjust the sentence passed so as to bring it into line with that indicated."

31. The Lord Chief Justice referred to the later court passing a sentence inconsistent with the early indication, "Without reasons which justify departure from the earlier indication." That is a most important qualification. At the heart of this case is whether DJ Wright did have reason to depart from the earlier indication given by the lay bench.
32. There have been a number of subsequent cases, to which we have been referred, where a defendant has been given an indication by a lay bench that it will sentence him and then a second bench, or a District Judge (Magistrates' Court) has decided that the defendant must be committed to the Crown Court for sentence. The defendant has then sought to challenge that later decision. Those cases include: R on the application of White v the justices of Barking Magistrates' Court, [2004], EWHC 417, and the case of R on the application of Harrington v the Bromley Magistrates' Court, 2007, EWHC, 2896.
33. We have also been referred to the cases where the defendant was given an indication of sentence by one bench of Magistrates' Court and then he was sentenced to a more severe sentence by a District Judge. Those cases include Keith James Paul Dalzell v DPP [2008] EWHC, 1193, Nicholas v Chester Magistrates' Court, [2009] EWHC 1504.
34. In all these cases where the defendant subsequently applied for judicial review of the relevant decision of the District Judge, whether it was to commit the defendant to the Crown Court for sentence, or to sentence him more severely than had been previously indicated.
35. All these cases are examples of a general principle that no judicial review will lie on the basis of "legitimate expectation" if the expectation was founded upon a decision of the bench which was so unreasonable as to be perverse, or was a decision that no reasonable bench, properly directing itself, could have reached.
36. I wish to add three further propositions to those established by the cases. First, by virtue of section 172(1)(b) of the Criminal Justice Act 2003, a bench is duty bound to have regards to sentencing guidelines when giving an indication of sentence at a hearing where a PSR or other report is ordered, or for some other reason sentence is not pronounced but deferred to another occasion, whether before the same bench or a differently constituted one. Secondly, because the magistrates "Must have regard" to the sentencing guidelines, that requires that it must be a proper, reasonable regard, not an unreasonable one. Thirdly, if a Magistrates' Court gives an indication of sentence without having proper or reasonable regard to the sentencing guidelines, then that may mean, depending upon the circumstances of the case, that the indication cannot give rise to a legitimate expectation on the part of the defendant; or to put it in another way, it may, depending upon the circumstances, give a second bench good reason to justify a departure from the earlier indication.
37. Submissions of the Appellants Mr Adrian Chaplin has appeared for the appellants on this appeal. He has, through his written submissions and his oral submissions said everything that could be said as cogently and as attractively as possible. He submits it is vital to keep in mind that the charge that the appellants faced was one under section 4 of the POA. The offence charged was not, as might have been expected, an offence under section 20 of the Offences Against the Person Act 1861. He submits that the advocate appearing for the appellant at the hearing on 1 July was entitled to plead that the offence and level of offending fell within the middle rank of the three levels of offence seriousness in the published guidelines of the Sentencing Guidelines Council on section 4 of the POA offences prepared for the use of magistrates. That level is "fear or threat of medium level immediate unlawful violence, such as a punch." It gives the starting point for such a level of seriousness as high level community order, and if gives the range as "low level community order to 12 weeks custody." Mr Chaplin submits that it was perfectly reasonable for the advocate to argue that the mitigating factors in this case outweighed the aggravating factors, and so to urge upon the magistrates a medium level community penalty. He submits that the decision of the magistrates on the seriousness assessment as community, medium, was reasonable in the circumstances. He says that they did not fail to have proper regard to the Sentencing Guidelines, and therefore the indication given by the magistrates on the 1 July was a reasonable one, and therefore founded a legitimate expectation which the appellants were entitled to expect would be fulfilled when DJ Wright came to pass sentence.
38. Considerations As I have already noted, I am quite satisfied that Mr Yaqub did is not mislead the magistrates in any way; all he was doing was his job as a good advocate. The prosecution was represented, and the magistrates had a legal adviser to assist them.
39. That said, I am equally satisfied that the view that the magistrates took of the level of seriousness of this case, and their decision as to the range of level of punishment, which was indicated to the appellants without any kind of safeguard, was not reasonable. There are the following aggravating features. First, the actual level of real violence used was much greater than that indicated on the sentencing form. Secondly, this was an attack by a large group on a single victim late at night. Thirdly, it took place outside licensed premises. Fourthly, in the case of Mr Thornton, the offence was committed during the unexpired part of the previous custodial sentence for the serious offence of conspiring to rob. The fact some of those aggravating features do not appear on the list of aggravating features in the guideline form is not the point; they should all have been considered by the magistrates before making any indication.
40. I accept that there were mitigating factors, in particular the early guilty pleas, and to a lesser extent the fact that the victim had apparently attacked a woman before the attack on him took place. I am prepared to accept that the magistrate's view that the initial attack upon the victim was "impulsive" was a reasonable one to take.
41. Overall, in my view it was not reasonable to say that the "offence seriousness" was in the second category. Plainly, it came within the highest category. The starting point for punishment was therefore that of 12 weeks custody. Aggravating and mitigating factors could not reduce that to the medium level in the case of either appellant.
42. I have therefore concluded: first, that the magistrates failed in their duty under section 172(1)(b) to have proper regard to the guidelines in giving the indication. Secondly, that the indication was unreasonable; it was one that no magistrates properly directed could have reached. Thirdly, therefore, that DJ Wright was not bound by that indication.
43. The Answers to the Questions posed in the Case Stated I should now address the questions posed in paragraph 43 of the Case Stated. The first question, in fact, contains two sub questions: first, it is asked where an indication given to a defendant about the level at which he or she is to be sentenced is inconsistent with Sentencing Guidelines Council guidelines, can the defendant be said to have legitimate expectation? The answer to that is that it may well be that the defendant will not have a legitimate expectation but it may well depend upon the facts.
44. The second sub-section question is: where an indication given to the defendant about the level at which he or she is to be sentenced is given, but no reason is given for departing from the guidelines, can that give rise to a legitimate expectation? Again, it must depend upon the facts; no reason has to be given for departing from the guidelines in certain circumstances where an indication is given, but the answer is fact-sensitive.
45. As to the second question, this refers back to the first question, and the presumption that there may be a legitimate expectation. If the expectation is legitimate, the magistrates will have complied with their duty set out in section 172(1)(b) of the 2003 Act. If they have not, then it will not be a legitimate expectation.
46. As to question three, it is clear from what I have said so far that the answer must be "No".
47. The appeal is therefore dismissed.
48. I would wish to add two points by way of a coda. First of all, I endorse what Wilkie J said in paragraph 13 of his judgment in this court in the case of Nicholas v Chester Magistrates' Court:

"We thoroughly deprecate the practice, if such it be, of one bench to adjourn sentencing for reports and in so doing give an indication as to the type of sentence which it would be appropriate to pass where that bench is not reserving sentence to itself. By so doing, as is indicated in the authorities, and save in an exceptional case, the effect of that is to fetter the discretion of the sentencing court. In our judgment, that should only be done where the bench reserves to itself the sentence, or in a case where it is absolutely obvious that a certain type of sentence should be considered or should not be considered. This case is very far from being that."

49. Secondly, it is imperative that magistrates do not put themselves in a position which binds the hands of another bench on the question of sentence unless they are absolutely certain that it is the right course to take. Forms can be used, and forms of words used, to ensure that no expectation about sentence, legitimate or otherwise, is engendered in the mind of defendants or their advisers. If those forms and words are used correctly, then unnecessary and expensive expeditions to this court will be avoided.
50. MR JUSTICE OPENSHAW: I agree. It seems to me that the magistrates originally sitting in this case may not have meant to give a formal indication of sentence to the defendant at all. What they may have intended, I think, was to give some informal preliminary assessment of the case to the Probation Service so that when they prepared the pre-sentence report they could more sharply focus their time and resources on some sentencing options rather than on others. The danger of course is that unless that is made clear to the defendant himself, he may misunderstand the purpose of what was said, and may take it as an indication of sentence on which he might with confidence rely.
51. It seems to me, therefore, echoing what my Lord has just said, that the nature and structure of the form, the way in which it is used and what was said to the defendant about it, needs to be given rather more attention than was given in this case. Indeed, the nature and structure of the forms used may have to be reconsidered in the light of my Lord's judgment; it may even be desirable to have a standard form used nationally. This is a matter which might perhaps usefully be considered by the Criminal Procedure Rules Committee.
52. MR CHAPLIN: My Lord, might I mention just two matters of a factual nature arising from the judgment you have just given?
53. LORD JUSTICE AIKENS: Yes.
54. MR CHAPLIN: You made reference to the defendant Thornton having received a term of 18 weeks imprisonment, suspended for 18 months, it was 20 weeks.
55. LORD JUSTICE AIKENS: I am sorry, I thought I had taken that from the Case Stated itself.
56. MR CHAPLIN: If you had, then at paragraph 3 page two it says Mr Thornton won was sentenced to 20 weeks.
57. LORD JUSTICE AIKENS: That is my fault, I obviously misread it.
58. MR CHAPLIN: The second matter is in respect of the pre-sentence assessment stage forms we have at page 16 and 17, my Lord, you made passing reference at number eight to the boxes having been ticked being for punishment and protection of the public.
59. LORD JUSTICE AIKENS: Yes.
60. MR CHAPLIN: As I read them, it is punishment and reduction/crime deterrence, as it were, in terms of--
61. MR JUSTICE OPENSHAW: Yes, you are right, the box to the right of the top, yes.
62. LORD JUSTICE AIKENS: You are absolutely right, it is rather confusing, but I will make sure that that is corrected.
63. MR JUSTICE OPENSHAW: It just shows how important it is to design the form properly so you do not miss read it, because it is easily done.
64. MR CHAPLIN: Indeed, I have to say when I first read the form, I thought they had assessed culpability as reckless in the middle of the page, but there it is, for the same reason.
65. LORD JUSTICE AIKENS: You are quite right, thank you very much for drawing that to our attention. Thank you both very much.
66. MR CHAPLIN: Knowing that those who instruct me and myself have the benefit of the a legal aid certificate for the purposes of today's hearing, and preparation, I had not thought it knows say anything else on the question of costs, but your associate indicates that it might be prudent to ask for the court to order legal aid taxation in respect of this matter.
67. LORD JUSTICE AIKENS: Yes.
68. MR CHAPLIN: And so I make such an application. I know that my learned friend for the Crown has indicated that she would not be seeking to pursue the question of costs on behalf of the respondent.
69. LORD JUSTICE AIKENS: You have no observations to make on the order sought?
70. MISS GUEST: I don't have any instructions to pursue for costs and since it would seem from your Lordship's ruling it was an arguable case, in that respect I would not seek costs.
71. LORD JUSTICE AIKENS: We will make the order as you seek, Mr Chaplin.
72. MR CHAPLIN: I am obliged.